PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19

- 1287

UNITED STATES OF AMERICA

v.

CHARLES J. SENKE, Appellant

On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No.: 3:16

- cr

- 00373

- 001) District Judge: Hon. James M. Munley

Argued July 8, 2020

(Opinion Filed : January 2 5 , 2021 )

Before: McKEE, BIBAS, and FUENTES, Circuit Judges

.2 Robert Epstein [ Ar gued ] Federal Community Defender Office for the Eastern District of Pennsylvania

601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106 Counsel for Appellant

Michelle L. Olshefski [ Argued ] Office of United States Attorney

235 North Washington Avenue P.O. Box 309, Suite 311 Scranton, PA 18503 Counsel for Appellee

OPINION

FUENTES, Circuit Judge

.

Appellant Charles Senke challenges his conviction for attempted sex offenses involving a minor, raising four objections. First, he contends that it was error for the District Court not to inquire into his motions regarding counsel’s performance. Second, he asserts that the District Court erred

when it fail ed to verify at sentencing that he discussed the presentence report with counsel. Third, he takes issue with several special conditions of supervised release. Finally, he argues that a special assessment fee was erroneously imposed
pursuant to a statute enacted after his offense conduct.3 While the District Court’s failure to address Senke’s complaints regarding his counsel was an abuse of discretion under our precedent in United States v. Diaz

, 1 we decline to review this error for prejudice on direct appeal in the first

instance. We also conclude that Senke was not prejudiced by

the District Court ’s failure to verify on the record that Senke and his attorney discussed the presentence report before imposing sentence

. Finally, b ecause the special condi tions of supervised release banning Senke’s computer and internet use run afoul of our precedent in United States v. Holena

, 2 and

because the Government concedes that the imposition of these

conditions and a special assessment fee was plain error, we will remand for further proceedings on these issues. Accordingly, we will affirm in part and vacate and remand for further proceedings in part.

I. BACKGROUND

A. Offense Conduct

Appellant Charles Senke was arrested after striking up

an online con versation on a popular social networking site with an undercover detective posing as an underage boy. In the course of that correspondence, Senke requested naked photographs of the underage boy, asked about the boy’s sexual experiences, transmitted graphi c photographs of himself and others, and offered to buy the boy gifts. During these exchanges

, Senke was reminded multiple times that he was purportedly conversing with a minor

.

1 951 F.3d 148 (3d Cir. 2020).

2 906 F.3d 288 (3d Cir. 2018).4 The pair eventually made plans to meet. Senke agree d

to travel to a mall n ear where he believed the boy lived

. On the day of the planned meeting, Senke’s vehicle was spotted by

undercover detectives and followed into the mall parking lot. As Senke pulled into a parking spot, the detectives stopped the

vehicle and took Senke in to custody. D etectives found a cell phone, condoms, personal lubricant , a l ap top computer, a

memory card and other personal items in Senke’s car

.

B. Procedural History

Senke was charged in a three

- count Superseding Indictment by a f ederal g rand j ury in Scranton , Pennsylvania for his attempts to engage in illicit sexual conduct with a

minor

. 3

He appeared before the District Court and p leaded not guilty . He was then appoin ted a federal public defender to represent him. Less than two months later, the federal public

defender filed a motion to withdraw as counsel , citing irreconcilable differences regarding case strategy . The District Court held a hearing on the matter, at which time Senke indicated that he wished to proceed pro se . After interviewing Senke, the District Court permitted him to proceed pro se , with the public defender as standby counsel.

Acting in a pro se capacity thereafter, Senke filed a plethora of pretrial motions , challenging the charges, the evidence, and his detention. The motions were denied.

3 Senke was charged with violating 18 U.S.C. § § 2423(b)

, 2422(b) , 1470.5 Following a conversation at a subsequent detention hearing, the District Court indicated that Senke agreed to accept appointed counsel. T h e District Court appointe d a Criminal

Justice Act attorney, Matthew T. Comerford

, to represent
Senke going forward

.

i. Pretrial Complaints about Comerford

In April 2018, Senke filed a pro se motion titled, “ Pro

Se Omnibus Pre

- T rial Motion ” and “Inadequate Representation.” 4 In that motion, Senke asserted that

Comerford

, inter alia

, (i) tried to pressur e him to take a plea

deal , (ii) did not take or return phone calls, (iii) refused to go

over evidence , calling it “to[o] disgusting, ” (iv) f ailed to turn over discovery to Senke

, and (v) was not preparing a defense
strategy for trial. 5 Senke also asserted that with Comerford as counsel, he “cannot get a fair and just trial

. ” 6 Senke did not, however, specifically request the appointment of new counsel.

The District Court took no action on this motion. Instead, Comerford filed a motion i n July 2018

, requesting that

co

- counsel be added to Senke’s defense team. The District Court granted the motion, appointing Comerford ’s associate, Curt M. Parkins, to assist at trial.

A pretrial confe rence was held in August 2018

. The conference was attended by Comerford and P arkins

, and the prosecutor, but not Senke. At the conference, Comerford

indicated that Senke was giving him “ a hard time ” about filing

4 App. 315

- 17

. 5 App. 316.

6 App. 317.6 additional pretrial motions. 7 Comerford stated, “I’m just letting you know he’s not happy with me that I am not filing

more motions

. ” 8 T he District Cou rt responded, “ [h] e doesn’t have much of a chance of losing you, right. You’re the second or third guy on this deal.” 9

In apparent reference to Senke’s pretrial letter regarding counsel, Comerford stated

, “[Senke is] putting in writing that I

am not d oing things.” 10 This conversation prompted the prosecutor to ask, “ H e’s not trying to fire you, is he?” 11

Comerford responded, “[n]ot that I know of,” and Parkins stated, “[j]ust difficult.” 12 The hearing concluded without any

further men tion of Senke’s letter

.

In the months leading up to trial, Senke did not s ubmit any additional requests or communications to the District Court regarding his defense team. Trial commenced on October 2, 2018 with Comerford and Parkins representing

Senke

. D efense counsel did not present any evidence, and

relied solely on a defense of entrapment. The next day, the jury returned a guilty verdict on all counts.

ii. Post

- trial Complaints about Comerford

While awaiting sentencing, Senke filed three pro se motion s regarding counsel

. The first motion

, requested that

7 A pp. 337

. 8 App. 338.

9 Id.

10 App. 338

- 39.

11 App. 339 (alterations in orig inal).

12 Id.7 Comerford be substituted for “an appealant [sic] attorney.” 13

The second motion, informed the District Court that Senke sent a complaint to the Disciplinary Board and requested “substitution of counsel in regard to the above

- mentioned

matters.” 14 The third motion, requested “a CJA Appealant [sic] appointment by the Court.” 15

The District Court denied the first and third motions in

written orders. In denying the first motion , the District Court footnoted its understanding of Senke’s request for an “appealant [sic] ” attorney as follows:

The deadline for defendant filing an app eal runs from the entry of judgment. Fed. R. App. P. 4(b)(1) (“ I n a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after the later of ... the entry of either the judgment or order being appealed; or ... the

fil ing of the government’s appeal.”) The judgment will be entered after defendant is sentenced. Upon appeal, the Third Circuit Court of Appeals has authority to appoint counsel for

the defendant. 16

In denying the third motion , the District Court stated that Senke’s “pro se motion to substitute counsel for appellate reasons” was denied because “[t]he appeals court will deal with

13 App. 637.

14 App. 638.

15 App. 642.

16 App. 641.8 appointing defendant counsel for appeal purposes.” 17 The

District Court did not separately respond to the second motion

.

iii. Sentencin g

After the jury verdict, t he District Court ordered a presentence investigation report (the “PSR”) to be filed . Senke

submitted his own obje ctions to the draft PSR , and Comerford filed a sentencing memorandum on Senke’s behalf. The final

PSR was filed , and an addendum was concurrently filed addressing Senke’s objections. As relevant on appeal, the District Court did not confirm at sentencing that Senke and

Comerford had an opportunity to discuss the PSR together.

Sentencing was held on Janu ary 29, 2019. The final

PSR provided a Guidelines imprisonment range of 168 to 210 months. Prior to imposing the sentence, the District Co urt sustained an objection with respect to a five

- level enhancement

under U.S.S.G. § 4B1.5(b)(1) for repeat prohibit ed sexual conduct, and adjusted Senke’s total offense level from 35 to

30. Because Count II carried a statutor y mandatory minimum

sentence of ten years’ imprisonment, the adjusted Guidelines range was 120 to 121 months

. T he District Court sentenced

Senke to the mandatory minimum term and ten years of supervised release. Additionally, it imposed 17 special conditions of supervised release, including:

1. You must submit to substance abuse testing to determine if you have us ed a prohibited

substance ;

17 App. 650.9 6. Yo u must not have direct contact with any child you know or reasonably should know to be under the age of 18, including your own children, without the permission of the probation officer ;

7. You must not go to, or remain at, any place where you know children under the age of 18 are likely to be, including parks, schools, playgrounds, and childcare facilities;

8. You must not go to, or remain at, a place for the primary purpose of observing or contacting

c hildren under the age of [18];

10. You must submit to periodic polygraph testing at the discretion of the probation officer as a means to ensure that you are in compliance with the requirements of your supervision or

treatment program;

11. You must not possess and/or use computers

.

. . or other electronic communications or data storage devices or media;

12. You must not access the Internet except for reasons approved in advance by the probation officer;

13. You must allow the probation of ficer to install computer monitoring software on any

computer

. . . you use;

14. To ensure compliance with the computer monitoring condition, you must allow the10 probation officer to conduct initial and periodic unannounced searches of any computers

. . .

s ubje ct to computer monitoring ;

15. You must submit your person, property, house, residence, vehicle, papers, computers

. . . other electronic communications or data storage devices or media, or office, to a search conducted by a United States probation of ficer. 18

Senke was also ordered to pay a special assessment fee of $10,000 under the Justice for Victims of Trafficking Act of 2015 (the “JVTA”)

. 19 This appeal followed.

II. JURISDICTION

The District Court had subject matter jurisdiction over this criminal case pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The District Court en tered its judgment on January

30 , 2019, and a tim ely notice of appeal was filed on February 1, 2019.

18 App. 13

- 14, 665

- 67.

19 18 U.S.C. § 301411 III. DISCUSSION

Senke raises four issues on appeal: (1) the District

Court’s failure to inquire into his motions regarding counsel; (2) the District Court’s failure to verify that he and his attorney

discussed the PSR before sentencing ; (3) the imposition of contradictory, vague, excessively delegative, or overbroad conditions of supervised release; and (4) the imposition of a special assessment fee pursuant to a stat ute enacted after the

offense conduct. We address each in turn.

A. The Failure to Inquire

Senke’s primary argument is that the District Court erred in not inquiring into his motions regarding counsel. We

review a district court’s decision on a motion for appointment

of counsel for abuse of discretion. 20 The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enj oy the right . . . to have the A ssistance of Counsel for

his defenc e.” 21 As relevant here, indigent defendants are permitted to request the appointment of new counsel , or to proceed pro se, if they are unhappy with their current court

appointed attorney

. 22

If a defendant reques ts substitute counsel , the court

must evaluate whether the defendant’s justification for seeking new counsel is based on “good cause” to “justify a continuance

20 See United States v. Gibbs , 190 F.3d 188, 207 n.10 (3d Cir. 1999).

21 U.S. Const. amend. VI.

22 See United States v. Welty , 674 F.2d 185, 187 (3d Cir. 1982).12 of the trial in order to allow new counsel to be obtained.” 23 We have explained that g ood cause can be “a conflict of interest, a complete br eakdown of communication, or an irreconcilable conflict with the attorney.” 24 “[T] he district court must engage

in at least some inquiry as to the reason for the defendant’s

dissatisfac tion with his existing attorney ” to determine whether

the defendant has shown good cause

. 25

We recently addressed the issue of a court’s failure to inquire into a motion for substitute counsel in United States v.

Diaz

. 26 There, the indigent criminal defendant wrote to the

District Court five times before tria l regarding issues with appointed counsel. Despite not specifically requesting new counsel in the first two communications, the District Court ordered defendant’s attorney to respond to the letters. The attorney did not do so. On the third attempt, defe ndant stated, “I am requesting that you consider appointing me new

counsel.” 27 The District Court took no action. Instead, one month later, defendant’s attorney filed a motion for continuance in which he represented that all issues between

counsel and de fendant were resolved. Counsel and defendant then appeared together at a pretrial conference, and neither raised any issues involving representation. Nevertheless,

23 Id.

24 United States v. Goldberg , 67 F.3d 1092, 1098 (3d Cir. 1995)

. 25 Welty , 674 F.2d at 187 ; see also Martel v. Clair , 565 U.S. 648, 664 (2012) (“As all Circuits agree, courts cannot properly

resolve substitution motions without probing why a defendant wants a new lawyer.”).

26 951 F.3d 148 (3d Cir. 2020).

27 Id. at 153.13 defendant wrote to the District Court two more times before trial raising similar concerns . But, defendant did not renew his request for new counsel in either of these letters. The case proceeded to trial without further inquiry.

In finding no abuse of discretion, we noted that “the District Court may not have been as attentive to [defenda nt’s] complaints regarding his counsel as it should have been,” but that soon after defendant’s request, the District Court “had good reason to believe [the attorney] was communicating with [defendant] such that [defendant’s] request was withdrawn or

moot. ” 28 We explained that the information the District Court

received in the motion for continuance made it clear that the attorney was paying attention to defendant’s requests

, and intervention was unnecessary. Thus

, Diaz presented “a unique circumstance,” and the “District Court’s inaction would . . . normally raise serious questions.” 29

Turning to the case at hand, we are yet again presented

with a claim of a district court’s inaction. T he Government argues that becaus e Senke did not explicitly request substitute counsel in his pretrial motion, the District Court was under no obligation to act. This places an inappropriately strict requirement on pro se defendants to know the law and articulate the exact action they de sire from the court. 30 And

28 Id. at 152, 155.

29 Id. at 155.

30 Higgs v. Att’y Gen. , 655 F.3d 333, 339 (3d Cir. 2011) (explaining that our “policy of liberally construing pro se submissions is driven by the understanding that . . . [there] is an obligation on the part of the court to make r easonable allowances to protect pro se litigants from inadvertent14 Diaz suggests that district courts should at least attempt to inquire further when made aware of a possible breakdown in

communication. 31 Moreover, we have said that a communication breakdown could be sufficient for a good

caus e finding, and we have not made such a finding contingent on the filing of a clearly articulated motion. 32 Here, the District Court was made aware of a potential breakdown in

communication.

Similar to the defendant in Diaz , Senke submitted a

communicatio n to the District Court in which he complained about his attorney , but he stopped short of asking for substitute

counsel

. The communication raised serious issues, including that Comerford was not preparing for trial and had called the evidence “to[o] disg usting” to review with Senke. 33 This alone gives us pause as to the District Court’s inaction. But then at a pretrial conference, Comerford brought the strained relationship to the District Court’s attention. Referencing Senke’s pretrial motion, Comerfo rd explained that the conflict

stemmed from his refusal to file additional pretrial motions

, and Senke’s insistence that he do so. Of course, an attorney is not required to take every action that his client desires. 34 But

forfeiture of important rights because o f their lack of legal training”) (internal quotation marks and citations omitted).

31 Diaz , 951 F.3d at 155 (“It is clear that the Court was aware of [defendant’s] concerns, and it took some action to remedy the situation when it ordered [the attorney] to file a response to [defendant’s] [first] letter.”).

32 S ee Welty , 674 F.2d at 188

. 33 App. 316.

34 See Taylor v. Illinois , 484 U.S. 400, 418 (1988) (“ The adversary process could not function effective ly if every15 this conversation, coupled with Senke’s letter raising alarming

concerns, should have indicated to the District Court that further inquiry was necessary.

In Diaz , we cautioned that “ [a] lthough the requisite inquiry may consider a variety of sources and need not include

a one

- on

- one co lloquy with the defendant,” we must also

consider “the importance of allowing the defendant, as well as counsel, the opportunity to be heard on the matter.” 35 We

further warned that “if a district court fails to make ‘ any on

the

- record inquiry as to the reasons for the defendant’s dissatisfaction with his existing attorney,’ it abuses its

discretion.” 36

Here, the District Court neither allowed Senke the opportunity to clarify his communication, nor made any searching inquiry on the record that woul d satisfy us that it had deduced the reasons for Senke’s dissatisfaction. Indeed, at the pretrial conference, which Senke was not a part of, the only colloquy regarding the meaning of Senke’s communication occurred between defense counsel and the prosecut or. Heeding our warnings in Diaz , we are not convinced that based

tactical decision required client approval .”); see also Gonzalez

v. United States , 553 U.S. 242, 248

- 50 (2008).

35 951 F.3d at 154; see United States v. Hodge , 870 F.3d 184, 202 (3d Cir. 2017) (“[B] y only gathering information from counsel whom a defendant wishes to reject, but not the defendant himself, a trial court creates some risk of overlooking some latent, legitimate reason for substitution that is not articulable by his counsel. ”).

36 Diaz , 951 F.3d at 154 ( citing McMahon v. Fulcomer , 821 F.2d 934, 944 (3d Cir. 1987)).16 on perfunctory exchanges at one pretrial conference where (i) the defendant was not present, and (ii) the District Court conducted no further inquiry, the District Court had “good

reason to believe” that Comerford and Senke were communicating again before trial. 37 Moreover, Senke

reiterated his concerns regarding Comerford’s lack of

communication in his post

- trial motio ns. He also raises the issue before us, where there is a question of wh ether Comerford reviewed the PSR with Senke. It seems then, these

communication issues were not resolved, and we see no reason

for the District Court to believe that they were before trial. For these reasons, we are persuaded that the District Court’s fa ilure

37 Diaz

, 951 F.3d at 155; see also McMahon , 821 F.2d at 942

- 44 (holding that trial court erred by denying defendant’s request for a continuance to obtain new counsel based “upon

counsel’s communication that he knew of no reaso nable basis for his discharge . . . without engaging in any on

- the

- record inquiry as to the reasons for the defendant’s dissatisfaction with his existing attorney.” ). It is worth noting that the District

Court’s comment that Senke “doesn’t have much of a chance of losing” Comerford because he was “the second or third guy on this deal,” is irrelevant to our analysis. App. 338. We have been clear that the obligation to inquire is in no way dependent on the number of requests a defendant has made, nor the number of attorneys that have represented a defendant. See
Diaz , 951 F.3d at 154

- 55; McMahon , 821 F.2d at 942 (“Even when the trial judge suspects that the defendant's contentions are disingenuous, and motives impure, a thorough and

searchi ng inquiry is required.”). And these comments do not suggest that the District Court reviewed and considered

Senke’s motion.17 to inquire into Senke’ s pretrial motion was an abuse of

discretion.

Finding error , we must evaluate its impact and proper remedy. 38 This analysis is contingent upon the right implicated

38 Our dissenting colleague points to dicta in Martel suggesting that the Court of Appeals in that case had “ ordered the wrong

r emedy even assuming the District Court had abused its discretion in denying [the habeas petitioner’s] substitution motion without inquiry. ” Martel , 565 U.S. at 666 n.4; see also

d issent at page 15 . The Supreme Court there noted that had the

Court of Appeals correctly determined that the district court abused its discretion in declining to evaluate the petitioner’s request for new counsel, it should have “ remand [ed] to the District Court to decide whether substitution was appropriate

at the time of [pe titioner’s] letter. Unless that court determined that counsel should have been changed, the Court of Appeals

had no basis for vacating the denial of [petitioner’s] habeas petition. ” Martel , 565 U.S. at 666 n.4. Our dissenting colleague argues we should remand here for the same purpose

, and that Martel “rejected the functional equivalent of a prejudice standard, too.” Dissent at page 15 n.66

. But this

reads too much into the Supreme Court’s suggestion. The language our colleague cites for th e rejection pertains to the separate question of what a capital habeas petitioner must show to substitute counsel under 18 U.S.C. § 3599. See Martel , 565

U.S. at 656

- 63. The Supreme Court held the same “interests of justice” standard on motions to substitute counse l in non

capital criminal cases should also apply to capital habeas petitioners seeking new counsel

. Id. at 660, 663. The Court

did not address whether a defendant who had a substitution motion wrongfully denied would have to demonstrate18 by Senke’s claim. Senke asserts that the failure to inquire into a defendant’s dissatisfaction with appointed counsel is

structural error

— meaning reversal is required regardless of whether the defendant can show prejudice or harm. But he is confusing his right to any counsel wi th his right to effective counsel. These rights are distinct, and so

, too

, is our analysis

of each

.

The cases Senke and the dissent rel y on for the assertion

of structural error involved defendants that sought substitution of counsel on the eve of trial, had their request denied, and

therefore were forced to choose between going to trial pro se or with counsel they were dissatisfied with. 39 Where a defendant then elects to proceed pro se, he or she must knowingly and voluntarily waive the right to any counsel. 40 This requires the district court to conduct an analytically distinct inquiry “ guaranteeing that the defendant understands what he is giving up, that he is ‘ made aware of the dangers and

dis advantages of self

- representation .’” 41 In these cases
, it was the failure to conduct this separate inquiry that required

prejudice

. But its suggestion that remand would be necessary even if the Court of Appeals concluded that the district court abused its discretion by not inquiring into the basis for the substitution motion suggests that the failure to inquire into

dissatisfaction with co unsel, without more, is not structural

error.

39 Welty , 674 F.2d at 187; Goldberg , 67 F.3d at 1096;

McMahon , 821 F.2d at 93 6

- 37

. 40 Welty , 674 F.2d at 190.

41 Id. (quoting Faretta v. California , 422 U.S. 806, 835 (1975)).19 reversal, not an inadequate inquiry into the reasons for a

defendant’s dissatisfaction with counsel. 42

To be certain, if Senke were asserting that his right to

retained counsel of choice was violated, such deprivation

would be structural error. 43 The same would be true if he were

42 Welty , 674 F.2d at 194 (“ B ecause this record does not disclose that Welty effectively waived his constitutional right to counsel, we are obliged to reverse his conviction .”); Goldberg , 67 F.3d at 1099, 1102 (finding “no abuse of

discretion in the denial of the continuance” to seek retained counsel, but vacating conviction because “ the district court failed to inform Goldberg of the risks of self

- representation in

accordance with Faretta and Welty .”); McMahon , 821 F.2d at 946 (“ [W] e hold that the trial court failed properly to determ ine

whether McMahon ’ s waiver of his sixth amendment right of counsel was knowing and intelligent. ”). McMahon made this point particularly clearly, holding that it would have reversed the petitioner’s conviction in that case “even if [the court] were

to ha ve found the trial judge’s denial of petitioner’s

continuance motion [to seek new retained counsel] proper.”

821 F.2d at 944. The dissent also misreads the rationale of these decisions. They did not require reversal because “the

defendants were forced t o choose between representing themselves and counsel that they had lost faith in.” Dissent at page 12 . This Court reversed because they had not effectively waived their right to counsel.

43 See United States v. Gonzalez

- Lopez , 548 U.S. 140, 148

- 52 (2006) (affirming Eighth Circuit’s reversal of conviction where defendant was deprived of his right to paid counsel of his choosing); see also United States v. Rankin , 779 F.2d 956, 960

- 61 (3d Cir. 1986) (vacating and remanding for new trial where20 asserting that he was denied the right of self

- representation. 44

This is bec ause a choice

- of

- counsel violation or a self

representation violation occurs at the moment the defendant’s choice is wrongfully denied. 45 But the Supreme Court has been careful to distinguish these rights from the right to

effective assistance of counsel.

The right to effective counsel is derived from the guarantee of a fair trial in the Due Process Clause , and t he elements of a fair trial are defined through the Sixth

Amendment. 46 The Sixth Amendment recognizes the right to

effective assistance “becaus e it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” 47 Accordingly, “[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.” 48 A violation of the right to effective counsel requires a showing

district court refused to continue trial date, forcing defendant to proceed to trial with appointed counsel when his retained

coun sel of choice was unavailable).

44 See McKaskle v. Wiggins , 465 U.S. 168, 177

- 78 n.8 (1984).

45 See Gonzalez

- Lopez , 548 U.S. at 150.

46 Id. at 146 (citing Strickland v. Washington , 466 U.S. 668,

684

- 85 (1984)).

47 Strickland , 466 U.S. at 685; see Gonzalez

- Lopez , 548 U.S. at 147 (explaining that “[t]he earliest case generally cited for the proposition that ‘the right to counsel is the right to the effective assistance of counsel,’ . . . was based on the Due Process

Clause rath er than on the Sixth Amendment[.]” (citing

McMann v. Richardson , 397 U.S. 759, 771 n.14 (1970))).

48 Strickland , 466 U.S. at 685.21 of prejudice, because “[c]ounsel cannot be ineffective unless his mistakes have harmed the defense[.]” 49

By contrast, the right to counsel

— including, i nter alia

, the right to counsel of choice and the right to self

representation

— “has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial.” 50 Rather, such rights are “the root meaning of the constitutional guarantee.” 51 The depri vation of these rights qualifies as structural error

beca use, in part, the consequences “‘ are necessarily unquantifiable and indeterminate. ’ ” 52 The Supreme Court has expressed a reluctance to expand the narrow category of rights that qualify for per se re versal. 53

Here, Senke ’s claim does not fall into one of the

established categories of structural error. He has not asserted

49 Gonzalez

- Lopez , 548 U.S. at 147 (internal quotation marks omitted).

50 Id. at 147

- 48; see Faretta , 422 U.S. at 819

- 21.

51 Go nzalez

- Lopez , 548 U.S. at 147

- 48.

52 Gonzalez

- Lopez , 548 U.S. at 150 (quoting Sullivan v.

Louisiana , 508 U.S. 275, 282 (1993) )

. 53 See generally

, Mickens v. Taylor , 535 U.S. 162, 173

- 74 (2002) (limiting automatic reversal rule established in Holloway v. Arkansas , 435 U.S. 475 (1978) and holding that to

demonstrate a Sixth Amendment violation where trial court failed to inquire into potential conflict of interest, de fendant had to establish conflict adversely affected counsel’s performance); see id. at 166 (collecting cases “where assistance of counsel has been denied entirely or during a critical stage of the proceeding[,]” sparing the defendant from

the need to show effect on the outcome of trial).22 that he was deprived of his right to counsel of choice. Indeed, he cannot, because the right to choose one’s own counsel does not extend to defendants who require appointed counsel

. 54 And he has not claimed that he was somehow deprived of his right to knowingly and intelligently represent himself. 55 Nor

has Senke claimed that Comerford had any conflict of

interest

, 56 or that he was so “embroiled in irreconcilable conflict” with Comerford that he was deprived “of the effective assistance of any counsel whatsoever,” as some of our sister

circuits have examined. 57 Despite his earlier misgivings with counsel, Senke proceeded to trial with the assistance of

Comerford. He therefore cannot also claim that he was denied the right to any counsel at all.

54 See Gonzalez

- Lopez , 548 U.S. at 151; Caplin & Drysdale,

Chartered v. United States , 491 U.S. 617, 626 (1989).

55 Cf. Faretta , 422 U.S. at 835.

56 Goldberg , 67 F.3d at 1098.

57 Compare United States v. Smith , 640 F.3d 580 , 590 (4th Cir. 2011) (quoting Brown v. Craven , 424 F.2d 1166, 1170 (9th Cir. 1970)), with United States v. Wallace , 753 F.3d 671, 675 (7th Cir. 2014) (“If communication with the defendant’s counsel broke down as a result of neglect or ineptitude by counse l, the defendant may have a claim of ineffective assistance of counsel, but to prove that he would have to present evidence.”)

and United States v. Smoot , 918 F.3d 163, 169 (D.C. Cir. 2019) (“A defendant challenging the denial of a motion to substitute

cou nsel must show that he was not ‘afforded effective representation’ in order to show that denial of the motion was prejudicial.” (quoting United States v. Graham , 91 F.3d 213, 221 (D.C. Cir. 1996))).23 Instead , it is possible to examine the record for

identifiable mi stakes and assess whether those mistakes

affected the outcome of his trial. 58 Senke’s claim is therefore more appropriately viewed as one for ineffectiveness, which must be reviewed for prejudice. The wrinkle, though, is that Senke has not attempted to s how prejudice in t his direct appeal.

And the District Court has not yet evaluated the matter. This is why, generally, we do not review claims of ineffective ness on direct appeal and prefer that they be raised through a h abeas corpus proceeding

. 59 Accordingly, although the District Court

failed to inquire into Senke’s complaints about counsel, we conclude that we cannot grant Senke relief on this claim as it is presently framed. We note that our disposition is without prejudice to Senke’s ability to bring a claim under 28 U.S.C. § 2255. 60

58 See Gonzalez

- Lopez , 548 U.S. at 150.

59 See United St ates v. DeRewal , 10 F.3d 100, 103

- 04 (3d Cir. 1993).

60 There is some support for our holding from our sister circuits. For example, the First Circuit in United States v.

Mota

- Santana , 391 F.3d 42, 45

- 46 (1st Cir. 2004), rejected a

defendant’s contention that there was a conflict of interest requiring reversal where counsel was ordered to respond to his client’s expressions of dissatisfaction. It explained that

[w]ere disagreements between attorney and

client to be treated in the same manner as [conflict of interest cases]

— with resulting possible per se reversal without the necessity of proving prejudice

— the nature of appeals in criminal cases would be dramatically altered.

The odds are that many an unsuccessful24 defendant would be found nursing some disagreement with counsel.

Id. at 46. Likewise supporting a showing of prejudice, the

Second Circuit observed in United States v. Doe #1 , 272 F.3d 116, 123 (2d Cir. 2001), that “if the reasons proffered [in a substitution motion] are insubstantial and the defendant receives competent representation from counsel, a court’s failure to inquire sufficiently or to inquire at all constitutes

harmless error.” Cf. United States v. Morrissey , 46 1 F.2d 666, 670 (2d Cir. 1972) (indicating a reluctance to reverse even where defendant raised serious issues with counsel, and ultimately affirming because defendant’s contentions were incorrect or subsequently cured, but noting that “[w]ithout more, [the trial judge’s] failure to inquire, in our view, would constitute error sufficient for reversal of the judgment of conviction.”). Similar to the holding in United States v. Doe

#1 , the Eighth Circuit in United States v. Jones , 795 F.3d 791, 797 (8th Cir. 2015), found no abuse of discretion where the magistrate judge denied defendant’s substitution motion without inquiry because the motion contained all of the information the court needed to make a ruling. In so finding, the Eighth Circuit explained that e ven if a trial court abuses its discretion, “the Sixth Amendment does not require an

automatic reversal of the conviction.” Id. at 796 (citing Martel

, 565 U.S. at 666 n.4 (reviewing renewed motion for substitution of appointed counsel in federal habeas co rpus proceeding, and noting that the Ninth Circuit ordered the wrong remedy even if the district court abused its discretion because “[t]he way to

cure that error would have been to remand to the District Court to decide whether substitution was appropriat e at the time of [defendant]’s letter.”)). Even the Ninth Circuit, though25 As to Senke’s post

- trial motions for new counsel, we conclude that the District Court did not abuse its discretion by not appointing substitute counsel for sentencing purposes. Senke stated multiple times in h is post

- trial motions that he was requesting “appealant [sic]” counsel. The District Court reasonably understood this to be a request for appellate

counsel

. 61 Accordingly, it was not error for it to conclude that any action on its part was moot.

B. The F ailure to Verify

Senke next argues that the District Court failed to comply with Federal Rule of Criminal Procedure 32(i)(1)(A)

, which provides that “[a]t sentencing, the court: (A) must verify that the defendant and the defendant’s attorney have read an d discussed the presentence report and any addendum to the

previously supporting automatic reversal, see Craven , 424

F.2d at 1170 , has reinforced that unless there is a constructive denial of counsel, defendant must show prejudice. Schell v. Witek , 218 F.3d 1017, 1026

- 28 (9th Cir. 2000) (en banc) (reversing, in part, district court’s denial of defendant’s petition for a writ of habeas corpus and remanding for evidentiary hearing to determine the nature and extent of the

conflict between def endant and his attorney and whether that conflict deprived defendant of adequate representation); see United States v. Musa , 220 F.3d 1096, 1102

- 03 (9th Cir. 2000) (vacating sentence and remanding for a hearing on the nature

of the conflict between defenda nt and his attorney, and instructing that “[i]f, after a thorough inquiry, the district court finds no breakdown in communication that prevented an adequate defense, it may reinstate the sentence.”).

61 See App. 641; 650.26 report.” 62 Because this issue was unpreserved, Senke must show plain error. 63 Under the pla i n error standard, we may vacate and remand Senke’s sentence only if we find (1) an error was committed; (2) the error was plain; and (3) the error

affected Senke’s substantial rights

. 64

In interpreting Rule 32(i)(1)(A), we have declined to create “an absolute requirement that the court personally ask the defendant if he has had the opportunity to read the report

and discuss it with counsel.” 65 Instead, we have “allow ed for a more functional fulfillment of the rule, requiring only that the

district court ‘somehow determine that the def endant has had this opportunity, ’” “before imposing sentence.” 66

Here, the District Court did not verbally ask Senke if he

read and discussed the PSR with his attorneys

. The question

, then, is whether the District Court could have independently determined that information before sentencing.

The Government assert s that “ it is clear from the record

that both [ Comerford ] and Senke had an opportunity to read the PSR as both filed specific objections. ” 67 That is true.

Comerford submitted a sentencing memorandum to the District

62 Fed. R. Crim. P. 32(i)(1)(A).

63 United States v. Olano , 507 U.S. 725, 734 (1993).

64 Id. at 732

- 34.

65 United States v. Mays , 798 F.2d 78, 80 (3d Cir. 1986).

66 United States v. Stevens , 223 F.3d 239, 241 (3d Cir. 2000) (quoting Mays , 798 F.2d at 80). At the time of Stevens , the

Rule 32(i)(1)(A) requirement was codified as Rule 32(c)(3)(A).

67 Gov’t Br. 33.27 Court, wherein he successfully argued t hat the PSR improperly

enhanced Senke’s offense level. Separately, Senk e submitted his own objections , which were addressed in an addendum to

the PSR.

However, nowhere in the sentencing memorandum does

it state that Comerford and Senke discussed the PSR together

. Moreover, Comerford submitted his objection to the p robation

o fficer before receiving Senke’s objections. At sentencing,

Comerford only mentioned the objection made in the sentencing memorandum, and did not reference any of Senke’s. While that may have been because Senke’s objections lacked merit, we cannot conclude that Comerford ’s silence indicates he reviewed the objections or di scussed them

with Senke. Nor does the District Court ’s recitation of Senke’s objection s and the one made in the sentencing memorandum

indicate that it determined Senke had the opportunity to discuss

the PSR with counsel

. Instead, these facts only confirm that

Senke and Comerford read the PSR, but they suggest nothing about a meeting of the minds.

Finding plain error, we turn to the issue of Senke’s substantial rights. For substantial rights to have been affected,

“ the er ror must have been prejudicial, ” in that it “ affected the

outcome of the district cour t proceedings. ” 68

Senke asserts that if the District Court had asked if he discussed the PSR with counsel, he could have challenged the recommendation of certain special condition s of supervised

relea se, and the recommendation of the $10,000 special

assessment fee under the JVTA. These arguments are

68 Olano , 507 U.S. at 734.28 unconvincing. Neither of these matters could have affected Senke’s criminal history category, n or the applicable Guidelines range. 69 Moreover, Senke was sentenced to the statutory mandatory minimum; thus “there is no reasonable

likelihood that the sentence would have been different

, ” had

the District Court verified a PSR discussion took place. 70 Accordingly, Senke’s Rule 32(i)(1)(A) claim must fail. 71

C. The Special Conditions of Supervised Release

Next

, Senke takes issue with several special conditions of supervised release imposed by the District Court. Because this challenge was unpreserved, Senke must show plain error. 72

E ach special condition mus t be reasonably related in a “tangible way,” to the defendant's crimes or something in his history, and it must involve no greater deprivation of liberty than is reasonably necessary to deter future crime, protect the public, or rehabilitate the defendant. 73 “This is not an especially high standard.” 74 But t he sentencing court must set forth factual findings to justify the special conditions. 75 If the

69 See Stevens , 223 F.3d at 244.

70 Id.

71 We stress the importance and relative ease of satisfying a Rule 32(i)(1)(A) verification on the record at sentencing. A very simple colloquy between defendants and district courts

would remove all doubt.

72 See United States v. Pruden , 3 98 F.3d 241, 248 (3d Cir. 2005).

73 Id. at 248

- 49 (internal quotation marks and citation omitted).

74 Id. at 249.

75 United States v. Voelker , 489 F.3d 139, 144 (3d Cir. 2007).29 court fails to do so, we may nevertheless affirm “if we can ascertain any viable basis” for the conditio n. 76

i. Conditions on Computer and Internet Usage

Senke argues that the conditions relating to his internet and computer us age are contradictory and more restrictive than

necessary. Specifically, he notes that Condition 11 instructs that he “must not posses s and/or use computers

. . . or other electronic communications or data storage devices or media.” 77

Yet C onditions 12

- 15 require him to obtain permission from

his probation officer to use the internet, have monitoring software installed on any computer he uses, and submit to searches of his computers, electronic communicati ons, and data storage devices. 78

The Government concedes that Conditions 11

- 15 are contradictory and require further clarification by the District

Court. We agree. These conditions are indistinguishable from

t he conditions we struck down in United States v. Holena

. 79
There, we carefull y laid out the considerations a sentencing

court must give when balancing public protection against broad, untailored restrictions on a defendant’s liberty. 80 We

76 Id. at 144 (internal quotation marks and citation omitted).

77 App. 13.

78 App. 13

- 14.

79 906 F .3d 288 (3d Cir. 2018).

80 Id. at 291

- 94 (“To gauge whether an internet or computer restriction is more restrictive than necessary, we consider three factors: the restriction’s length, its coverage, and ‘the30 noted that “internet bans are ‘draconian,’” particularly in a modern society, where one can h ardly complete menial tasks without using a computer or the internet. 81 As such, the goal of restricting internet and computer use for defendants like Senke must be to keep them from preying on children. For the reasons explained in Holena , there is no s uch tailoring here.

Conditions 11

- 15, as currently written, prevent Senke from participating in all sorts of activities, while doing nothing to further public safety. 82

On remand , the District Court must “make findings to support any restrictions it choo ses to impose on [Senke’s] internet and computer use.” 83 Undoubtedly, t here is a strong need to protect the public, and the District Court may still find it appropriate to limit Senke’s internet and computer use. 84 But any limitations must be supported b y facts, tailored to Senke’s conduct, and “aim to deter future crimes, protect the public, or rehabilitate [Senke].” 85

ii. Conditions on Contact with Minors

defendant’s underlying conduct.’” Id. at 292 (q uoting United

States v. Heckman , 592 F.3d 400, 405 (3d Cir. 2010))).

81 Id. at 292 (quoting Heckman , 592 F.3d at 408).

82 See id. at 294

- 95 (noting that a complete ban on computer

and internet use raises First Amendment concerns because it restricts an array of activity, without making the public safer).

83 Id. at 291.

84 Id. at 293 (“We recognize that the need to protect the publi c is strongest in cases like this, when the defendant used the internet to try to molest children.”).

85 Id.31 Senke also contends that Conditions 6 and 7, regulating his contact with minors, are contradictory. Condition 7 bans Senke from going to or remaining at any place where children “are likely to be.” 86 Yet Condition 6 requires him to obtain permission from the probation officer in order to have direct

contact with children. 87 He also argues that Condition 7 is overbroad and unnecessary in light of Condition 6, when the

record shows that he was not seeking out children and had no prior sexual interest in childre n

.

The Government responds that C ondition 6 prohibits “direct” contact with minors without prior permission from a probation officer, while C ondition 7 prohibits intentional travel to and/or remaining at places where minors frequent and are likely to co ngregate.

We agree with the Government’s reasoning; Conditions 6 and 7 are not contradictory or overbroad . As the Government explains, Condition 6 requires Senke to receive permission from a probation officer before having direct contact with a minor, regardless of location. Condition 7 prevents him from traveling to places where minors are likely to be, even if he does not intend to have direct contact with any minors. F or additional clarity, Condition 7 provides examples on the types of places it en compasses. These conditions are appropriately tailored to Senke’s crime, and are not so contradictory or overbroad that Senke “cannot tell what they forbid.” 88

Senke also complains that Condition s 7 and 8 are

86 App. 13

. 87 Id.

88 Holena , 906 F.3d at 291.32 unconstitutionally vague. He argues that r easonable people could disagree about whether children are “likely to be” at a variety of places , and there is no guidance as to how he or his probation officer should determine his “primary purpose” for going to a particular location. 89

We previously upheld an arguably stricter condition that restricted any unsupervised contact with minors in a case where the defendant was convicted solely of possessing child pornography. 90 In doing so, we determined that the prohibition against unsupervis ed contact was not unconstitutionally vague

because it did not foreclose accidental contact. 91 Similarly, the Second and Fifth Circuits have routinely upheld special

conditions that banned defendants from areas where children “frequent” or “congregate.” 92 The same is true of provisions

89 App. 13.

90 United States v. Loy , 237 F.3d 251, 254 (3d Cir. 2001).

91 Id. at 269 (“At this point, it is well established that

associational conditions do not extend to casual or chance meetings.”).

92 See United States v. Fields , 777 F.3d 799, 806 (5th Cir. 2015) (upholding a condition that prohibited defendant from going to places “where a minor or mino rs are known to frequent ” and defining thos e “places” to include schools and playgrounds, but not locations such as grocery stores, places of worship,

trans portation hubs, and most stores) ; United States v.

MacMillen , 544 F.3d 71, 73, 75

- 76 (2d Cir. 2008) (upholding a condition prohibiting the defendant from being in “any” area

where chil dren are “likely” to congregate because “[t] he condition challenged here provides [defendant] with adequate notice of what conduct is prohibited

— namely, frequenting

p laces where ch ildren are likely to congregate. ” ) ; United States33 that include anti

- loitering language similar to that of Condition

8. 93

Here, neither Conditions 7 nor 8 bar accidental contact that could occur during ordinary activities in public places. These conditions are tangibly r elated to Senke’s conviction, where he attempted to entice a minor to meet him in a public place for the purposes of sexual contact. Moreover, their wording is not so vague that “ men of common intelligence must necessarily guess at [their] meaning an d dif fer as to [their] application.” 94

iii. Conditions Relating to Testing

v. Johnson , 446 F.3d 272, 280

- 81 (2d Cir. 2006) (upholding a provision of supervised release that prohibited the defendant from being in “any” area where children are “likely” to
congregate ) ; United States v. Paul , 274 F.3d 155, 165

- 67 n.13 (5th Cir. 2001) (denying a vagueness challenge to a condition instructing defendant to avoid “places, establishments, and areas frequented by minors,” finding that this direction may be reasonably interprete d and enforced).

93 See United States v. Oliphant , 456 F. App ’ x 456, 458

- 59 (5th

Cir. 2012) (per curiam) (upholding against vagueness challenge condition stating that defendant “shall not have access to or loiter near school grounds ”); United States v.

Bur roughs , 613 F.3d 233, 246 n. 3 (D.C. Cir. 2010) (upholding against vagueness challenge condition barring defendant from “loiter[ing] in any place where children congregate”).

94 United States v. Maloney , 513 F.3d 350, 357 (3d Cir. 2008).34 Senke contends that Conditions 1 and 10 delegate excessive authority to his probation officer by requiring him to take an unlimited number of drug and polygraph tests.

District courts may not delegate to probation officers the power to “decide the nature or extent” of supervised release

conditions. 95 But we have held that “probation officers must be allowed some discretion in dealing with their charges,” as “courts cannot be expected t o map out every detail of a

defendant ’ s supervised release.” 96 In the context of mental health intervention, we determined that if a defendant is required to participate in intervention “only if directed to do so by his probation officer,” then this is an impermissible delegation of judicial authority. 97

Here, the probation officer was instructed by the District Court to subject Senke to drug and polygraph testing. While

the probation officer may decide the time, place and frequency of such testing, the testing is not optional. Senke is required to participate in order to comply with the District Court’s

conditions. Because t he District Court has merely delegated to the probation officer the deta ils with respect to “ selection and

schedule ” of the testing , such delegation is proper. 98

D. The JVTA Special Assessment Fee

95 Pruden , 398 F.3d a t 250.

96 Id.

97 Id. at 250

- 51 (quoting United States v. Peterson , 248 F.3d 79, 85 (2d Cir. 2001)).

98 Id.35 Lastly, Senke argues that the District Court erred by imposing a $10,000 special assessment under the JVTA. 99 He

contends that bec ause the JVTA was enacted on May 29, 2015,

and he was charged with offenses committed between Sep tember 2014 and February 2015, this assessment violates

the Ex Post Facto Clause. The Government concedes that the fee imposition was plain error. We agree a nd will vacate the

fee.

IV. CONCLUSION

For the foregoing reasons, we will vacate the District Court’s ju dgment as to its imposition of s pecial Conditions 11

- 15 regarding Senke’s internet and computer use and a special

assessment fee under the JVTA and remand for further proceedings. We will otherwise affirm the District Court’s judgment as to Senke’s conviction and sentence.

99 18 U.S.C. § 3014.1 M cKEE

, concurring in part and dissenting in part.

The M ajority correctly co ncludes that “the d istrict

c ourt’s failure to address Senke’s complaints regarding his counsel was an abuse of discretion under our precedent in

United States v. Diaz

. ” 1 However, my colleagues incorrectly

conclude that relief is conditioned upon Senke demonstrating that he was prejudiced by his attorney’s conduct. Th at
conclusion arises from the M ajority’s belief that the Sixth

Amendment right that has been abridged by the d istrict c ourt’s

abuse of discretion was Senke’s right to effective assistance of counsel, rath er than his right to substitute counsel

. 2 The former right is, as my colleagues explain, subject to harmless error analysis and the requirement that a defendant demonstrate prejudice pursuant to Strickland v. Washington

. 3 However, the court’s failure to inquire into Senke’s request for substitut e counsel was an abuse of discretion that is not subject to a harmless error inquiry. 4 Rather, precedent from our court and

1 Maj. Op. at 2.

2 Id

. 3 466 U.S. 668, 684

– 85 (1984).

4 As I explain in Part III, infra , the Supreme Court has recognized an indigent defendant’s right to substitute counsel where it is in the “interests of justice.” See Martel v. Clair

, 565 U.S. 648, 658 (2012). We have interpreted the interests of justice sta ndard to require a showing of “good cause,” i.e . that the defendant had “a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict” with the
attorney. United States v. Welty , 674 F.2d 185, 188 (3d Cir. 1982). Where a defe ndant shows good cause and a district court fails to substitute counsel, the error is the functional equivalent of the denial of a defendant’s right to counsel of2 the Supreme Court require that, at the very least, we remand to

the d istrict c ourt with instructions to determine if the conflict

b etween Senke and his counsel was irreconcilable. 5 If it was, and it clearly may have been, there was structural error that requires a new trial.

I.

As my colleagues recognize, the d istrict c ourt did not appropriately inquire to determine whether there was “a conflict of interest, a complete breakdown in communication,

or an irreconcilable conflict” between Senke and his appointed trial attorney

. 6 Such an inquiry is vital because “[t]he right to counsel is among those ‘constit utional rights (which are) so

basic to a fair trial that their infraction can never be treated as
harmless error.’” 7 Where the relationship between an indigent

choice. See id. ; see also United States v. Smith , 640 F.3d 580, 590 (4th Cir. 2011) (“Once a district court has determined that [a] defendant and his counsel’s communication has so deteriorated as to prevent the mounting of an adequate defense . . . an appointment of substitute counsel is part and parcel of a defendant’s Sixth Amendment right.”). As the Supreme Court has explained, a denial of this right is not subject to a prejudice analysis. See United States v. Gonzalez

- Lopez , 548 U.S. 140, 148 (2006) (“Where the right to be assisted by counsel of one’s choice is wrongly denied . . . it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.”).

5 See Martel

, 565 U.S. at 666 n.4

. 6 United States v. Diaz , 951 F.3d 148, 154 (3d Cir. 2020)

. 7 Welty , 674 F.2d at 194 n.6 (citing Chapman v. Califo rnia , 386 U.S. 18, 23 & n.8 ).3 defendant and the attorney has broken down and the defendant demonstrates good cause for substitution of counsel, new counsel must be appointed. 8

Here, there was only a rather perfunctory exchange
between the court and counsel which revealed the court’s

disinclination t o regard Senke’s request with the seriousness the law requires. As the Majority recounts, at a pretrial conference, Senke’s attorney told the court that Senke was not happy with him because Senke wanted him to “fil [ e ] more motions.” 9 My colleagues quite c orrectly reject the government’s attempt to argue that Senke never requested substitute counsel. As my colleagues explain, Senke was a pro

se litigant and his pretrial letter to the court “raised serious issues, including that Comerford was not preparing f or trial and had called the evidence ‘to[o] disgusting’ to review with

Senke.” 10 My colleagues cite to Higgs v. Att orney Gen eral

, 11

w h ere we explained that our “ policy of liberally construing pro

se submissions is driven by the understanding that . . . [there] is an obligation on the part of the court to make reasonable

8 Id. at 188

. See also United States v. Velazquez , 855 F.3d 1021, 1037 (9th Cir. 2017) (concluding that where “ the district court abused its discretion by denying Velazquez ’ s requests to
substitute counsel without conducting an adequate inquiry [,] [t] he result was a constructive denial of counsel that require [d] [the court] to vacate Velazquez ’ s guilty plea ” and remand for further proceedings with new counsel).

9 Maj. Op. at 6 (citing App. 338)

. 10 Id

. at 14 (citi ng App. 316)

. 11 655 F.3d 333 (3d Cir. 2011)

.4 allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” 12 I agree.

I also agree with my colleagues’ conclusion that

Senke’s communication to the c ourt “should have indicated to

the d istrict c ourt that further inquiry was necessary.” 13 Rather than engaging in the required inquiry, the c ourt summarily

dismissed any suggestion that Senke’s dissatisfaction with

counsel was tantamount to a request for a new attorney. The court responded by telling counsel that Senke didn’t “have much of a chance of losing” Comerford

, because he was “the second or third guy on this d eal.” 14 I ronically, the only real inquiry came not from the court but from the prosecutor who inquired, “ [h] e’s not trying to fire you

, is he?” Defense counsel replied, “ [ n ] ot that I know of.” 15 But, of course, Senke was also complaining about defense counsel’s lack of communication

with him. 16

12 Maj. Op. at 13, n.75 (quoting Higgs

, 655 F.3d at 339)

. 13 Id

. at 14.

14 App. 338. I disagree with my colleagues’ conclusion that this remark by the court “is irrelevant to our analysis.” Maj. Op. at 15, n.84. Although I realize that my colleagues may have simply been referring to the fact that the court’s statement did not rise to the level of an adequate inquiry, I nevertheless think

the comment is relevant as it establishes the absence of such an inquiry and the c ourt’s predisposition to refrain from undertaking that inquiry.

15 App. 339.

16 Indeed, Senke points to the following exchange at the pretrial conference to argue that Comerford was actively working against Senke’s interest s by suggesting that the court issue an5 I therefore agree with the Majority’s holding that the

trial court abused its discretion in not exploring the nature of

the conflict between Senke and defense counsel

. I must
nevertheless dissent from the Majority Opinion because my colleagues hold that Senke is arguing ineffective assistance of counsel and that his claim is therefore subject to a harmless error analysis under Strickland.

II.

Senke is clearly arguing that the court deni ed him his right to counsel not because of any alleged ineffective

order precluding Comerford from filing any more motions on
Senke’s behalf

. Comerford s tated:

I’m just

– I just want you to

– like, how do you want me to cover the record? Do you want me to

file a motion to let

– leave of court to file more motions and you deny it? I don’t know how you

want me to handle it.

* * *

So I will try to protect the re cord, and I will file . . . some type of

documentation with the c ourt for leave to file additional motions, and then

Y our Honor can do whatever you need to do with

it.

App. 338

– 39.6 assistance and consequent prejudice, but because an

irreconcilable conflict existed between himself and his attorney

that resulted in a structural error. His brief simply cannot be fairly r ead any other way. It clearly cannot be read as asserting

the kind of ineffectiveness claim under Strickland that the Majority relies upon to support harmless error review

.

The relevant arguments in Senke’s brief are structured

as follows:

I. The district court violated the Sixth Amendment by failing to inquire into or rule on Mr. Senke’s pretrial motion for appointment of new counsel

. . .

A. When an indigent criminal defendant moves for appointment of

new counsel, the court must inquire

into the reasons for his dissatisfaction with his attorney

. . .

B. The district court abused its discretion by failing to inquire into or rule on Mr. Senke’s pretrial motion for appointment of new

counsel. 17

The relevant legal arguments under Senke’s

“Discussion” section of his brief are similarly focused and pertain on ly to the court’s failure to inquire into Senke’s request for new counsel. Senke’s brief even cites to specific parts of the record where that argument was preserved. It

17 Appellant’s Br. at i

– ii.7 states: “Mr. Senke preserved the issue by filing one pretrial and three posttrial moti ons for appointment of new counsel.” 18 Yet, the Majority concedes: “[t]o be certain, if Senke were asserting that his right to retained counsel of choice was violated, such deprivation would be structural error .” 19 But that is exactly what he is asserting insofar as the claim pertains to substitute counsel. Excerpts from his brief clearly establish this.

My colleagues stat e : [I] t is possible to examine the record for

identifiable mistakes and assess whether those

mistakes affected the outcome of [Senke’s] trial. Senke’s claim is therefore more appropriately viewed as one for ineffectiveness, which must be reviewed for prejudice. The wrinkle, though, is that Senke has not attempted to show prejudice in this direct appeal. 20

They incorrectly conclude from Senke’s briefs and from our exchange at oral argument that Senke was asserting a claim of

ineffective assistance of counsel und er Strickland rather than structural error for failing to substitute counsel. 21 A close reading of the transcript of oral argument , however, simply does not support the contention that counsel was there asserting

a Strickland claim rather than structural error.

A Strickland prejudice analysis was discussed at oral argument, but only in response to questions from the panel. The exchange began when appellate counsel referred to the

18 Id . at 2.

19 Maj. Op. at 1 9

. 20 Id . at 2 3 (int ernal citations omitted).

21 Id

.8 letter that Senke sent before trial complaining about trial counsel. Appellate counsel argued, “ properly construed, this was clearly a motion for new counsel because he was saying I

don ’ t believe I can get a fair trial with this man as my attorney.” 22 After a few exchanges, appellate counsel was basically instructed to argue harmless error: “So eithe r you have to show us that this is structural, or you have to demonstrate prejudice. Your brief has not made any effort to show prejudice. Can you make a prejudice showing here today?” 23 Appellate counsel responded that he could “go through various reasons why [he] believe[d] the attorney ’ s representation at trial wasn ’ t competent.” 24 We then interrupted counsel and asked: “the second prong [of

Strickland

] is what you ’ re being asked about now, and . . . [ w ] hat

, if any, prejudice resulted from th at dereliction of professionalism?” 25 But counsel had not raised the specter of a dereliction of professionalism; we had. Counsel attempted to respond to our inquiry by explaining: “in a series of cases

. . . which we cite in our brief, when a court

- appointe d attorney

should be removed for cause

– and we’re assuming, for purposes of this question, that he should have been removed

for cause

– then there is a constructive denial

. . . of the right to

22 Transcript of Oral Argument (“Transcript”) at 4.

23 Id

. at 8 . Senke’s brief made no attempt to establish prejudice precisely because he was not arguing ineffective assistance of

counsel under Strickland but a structural error that resulted from the court’s failure to appoint substitute counsel. Given that, it would have bee n self

- defeating to then argue prejudice in his brief, as we asked him to at oral argument.

24 I d

. at 8.

25 I d

. at 9.9 counsel.” 26 After a brief exchange, counsel continued: “ N o

co urt has ever required [a showing of prejudice] . . . in this situation. If an attorney should have been removed for cause,
then it’s considered prejudice, per se.” 27

We then pressed counsel further: [ to ] clarify again. There are two ways you can win, on e of them is structural or presumption.

You ’ re pushing that now , let ’ s get to that in a minute. I want to give you an opportunity, if there is anything you can cite to show prejudice,

this is your chance. If you don ’ t answer this question , then we have to take the whole thing on the structural approach. 28

After another brief exchange, counsel sought clarification:

“ When you say ‘ establish prejudice, ’ do you mean that there

were things that this attorney did that was [sic] prejudicial to my client?” 29 We responded by again referring to Strickland and asking “is there anything you can cite in this record that would satisfy [the prejudice requirement of Strickland ]?” 30

Counsel answered

, “ A bsolutely

, Your Honor

, ” and he then went on to argue points in the rec ord that he believed would satisfy the prejudice prong of Strickland just as we had invited

him to. 31

26 I d

. 27 Id

. 28 I d

. at 9

– 10 (emphasis added).

29 I d

. at 10.

30 Id

. 31 Id . at 10, 11.10 A rguments raised on appeal are defined by, and limited to, the arguments outlined in a litigant’s brief . They are not defined by issues that were not briefed and raised only at oral
argument. That axiom should apply with particular force where, as here, cou nsel’s statements at argument were only an attempt to respond to questions or direction from the court. In fact, we have declined to decide issues raised by the panel during argument but not presented in the party’s appellate

brief. 32

III.

In Martel v. Clair , the Supreme Court recognized a statutory right to substitute counsel where an indigent

defendant shows that substitution is in the “interests of justice.” 33 The Court there cited our opinion in Welty in discussing when the interests of jus tice required substitution of

counsel. 34 A reviewing court can determine whether substitution is in the interests of justice by looking at “the

32 See, e.g

., United Artists Theatre Cir

. , Inc. v. Twp. of Warrington, P a. , 316 F.3d 392, 397 (3d Cir. 2003) ( noting that a prior “ panel did not decide [ an issue ] . . . because

the issue was raised by the panel on its own at argument and was not briefed by the parties . . . .”) ; United States v. Lennon

, 372 F.3d 535, 541 n.10 (3d Cir. 2004) (“For the same reason that we will not consider an argument minted at the reply brief stage, we will not consider an argument made by counsel for the first time at oral argument.”)

. 33 565 U.S. at 658 (“‘[T] he interests of justice ’ . . . standard derives from 18 U.S.C. § 3006A, which governs the appointment and substitution of counsel in federal non

- capital litigation.”).

34 Id . at 663.11 timeliness of the motion ; the adequacy of the district court’s inquiry into the defendant’s complaint; and the ass erted cause for that complaint, including the extent of the co nflict or breakdown in communication between lawyer and client (and the client’s own responsibility, if a ny, for that conflict).” 35 We have interpreted this standard to require a showing of “go od cause;” i.e. where the defendant demonstrates that there was a

“ conflict of interest, a complete breakdown in communication, or an irreconcilable conflict with [the] attorney ,” substitution

follows

. 36

In Gonzalez

- Lopez , the Supreme Court concluded that a
district court’s erroneous denial of a defendant’s motion to

substitute counsel was “structural error” and required relief without any demonstration of prejudice. 37 Although the

defendant in Gonzalez

- Lopez was able to pay for his attorney and therefore had a right to counsel of his choice, the Court’s conclusion that where substitute counsel is erroneously denied

, the defendant has suffered structural error

, applies with equal

force here. A defendant who has been denied this right need not show prejudice to get relief ; the defendant merely needs to show that good cause existed to substitute counsel and that the

district court failed to do so. 38

35 Id

. (citing United States v. Prime, 431 F.3d 1147, 1154 ( 9th

Cir. 2005); United States v. Doe, 272 F.3d 116, 122

– 123 ( 2nd

Cir. 2001); Welty, 674 F.2d at 188 )

. 36 Welty , 674 F.2d at 188 ; accord Diaz , 951 F.3d at 154.

37 Gonzalez

- Lopez , 548 U.S. at 150.

38 See, e.g

., Welty , 674 F.2d at 188 ; Velazquez , 855 F.3d at 1034 ( “A defendant need not show prejudice when the breakdown of a relationship between attorney and client from12 In concluding otherwise, t he Majority attempts to buoy its view of the essence of Senke’s constitutional claim by suggesting that he has confused his claim of the denial of

counsel of choice with the Sixth Amendment’s guarantee of

effective assistance of counsel. We are told that the latter requires competent representation and thus lends itself to an inquiry into prejudice whereas the former protects the

structural integrity of the trial. However, in Gonzalez

- Lopez

, the Supreme Court rejected the same kind of hair

- splitting that my colleagues engage in here. There, the Court rejected the state’s argument “that the Sixth Amendment violation is not ‘complete’ unless t he defendant can show that substitute counsel was ineffective within the meaning of Strickland v. Washington

. . . i.e.

, that substitute counsel’s performance was deficient and the defendant was prejudiced by it.” 39 In explaining why Strickland did not apply there, the Court stated :

the Government’s argument in effect reads the

Sixth Amendment as a more detailed version of

the Due Process Clause

— and then proceeds to give no effect to the details. It is true enough that the purpose of the right s set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair. 40

irreconcilable differences results in the complete denial of

counsel.” ).

39 Gonzalez

- Lopez , 548 U.S. at 144 (internal citation omitted)

. 40 Id . at 145.13 Of course, as mentioned, Senke’s counsel was appointed to him and therefore he was differently situated than

the defendant in Gonzalez

- Lopez , who could afford his own counsel, but the Court’s fundamental teaching, that an erroneous deprivation of counsel is structural error, is no less vibrant for a defendant with appointed counsel. 41 The Court in

Gonzale z

- Lopez was concerned with the “erroneous” “deprivation of counsel,” concluding that such deprivation was

structural error. 42 So too in a case where an indigent defendant

shows cause

– that there was a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict

41 As the Majority notes, the Court in Gonzale z

- Lopez stated that “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them,” id.

at 151, but that statement, which was dicta, did nothing to alter

the structura l error holding of the case. In fact, in making that statement, the Court cited to Caplin & Drysdale, Chartered v.

United States , 491 U.S. 617, 626 (1989), where it concluded that “[a] defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney.”

Id

. (emphasis added). When considering the case of an indigent defendant, t he Gonzale

z

- Lopez Court’s statement is best read in that context, as a statement on the practical limitations indigent defendants face when re questing substitute counsel

– because the defendant cannot afford substitute counsel, the

defendant will have to do with appointed counsel. I do not, however, read the Court’s statement in Gonzalez

- Lopez as doing what the Majority suggests; namely, preclud ing an indigent defendant from raising a claim of structural error

where the defendant was erroneously denied substitute

counsel.

42 Gonzale

z

- Lopez

, 548 U.S. at 146.14 with the attorney

– and is erroneously denied substitute

counsel. That defendant has similarly been “depriv[ed] of counsel . . . erroneous[ly]” and the error in the case is structural. That indigent defendant , too, need not demonstrate prejudice to get relief.

The Majority claims that “Senke’s claim does not fall into one of the established categories of structural error.” 43 But as we have consistently held, if Senke can show good cause

then he is entitled to substitution of counsel. 44 The erroneous deprivation of such substitute counsel is aki n to the denial of a defendant’s Sixth Amendment right to choice of counsel, which, unequivocally, is structural error.

The Court’s reasoning in Gonzalez

- Lopez is therefore equally applicable here: “[T] he erroneous denial of counsel

bears directly on the framework within which the trial proceeds

. . . . It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. ” 45 Accordin gly, w here “ the deprivation of

counsel [i] s erroneous [,] [n] o additional showing of prejudice is required to make the violation ‘complete.’” 46 This is true

whether a defendant can pay for an attorney or not. “ Harmless

error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe. ” 47 An indigent defendant is constitutionally entitled to go to trial with

43 Maj. Op. at 21

. 44 See Welty , 674 F.2d at 188.

45 Id . at 150 (internal citations and quotations omitted).

46 Id

. at 146.

47 Id

. at 150.15 an attorney with whom the defendant does not have an

irreconcilable conflict. 48

We have also previously concluded that when a defendant has been deprived of the right to substitute counsel,

the error requires reversal without a prejudice inquiry . In Welty , we reversed and remanded where the trial court refused to appoint new counsel and where we were not convinced that the court adequately investigated the defendant’s decision to proceed pro se. 49 And in McMahon v. Fulcomer

, 50 we also reversed and remanded where the district court granted defense

counsel’s motion to withdraw a nd denied defendant’s motion for a continuance, which would have allowed him time to procure substitute counsel. 51 We did not engage in a prejudice analysis following the district court’s erroneous decision to deny substitute counsel in either case

.

The Majority concludes that because the defendants in

such cases were forced to choose between counsel with whom they were dissatisfied and with self

- representation, the cases are inapposite. 52 But that distinction is without a difference. Rather, it is merely a reflection of the reality that these cases

48 See United States v. Smith , 640 F.3d 580, 590 (4th Cir. 2011) (“ [T]o compel one charged with grievous crime to undergo trial with the assistance of an attorney with whom he has

become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever.” ) (citations omitted).

49 674 F.2d at 194.

50 821 F.2d 934 (3d Cir. 1987)

. 51 Id . at 944.

52 Maj. Op. at 1 7

– 1 8

.16 often arise in that posture. The fact that the defendants were

forced to choose between self

- representation and counsel that they had lost faith in, howe ver, does not negate the proposition

that substitute counsel must be provided when there is an adequate showing of good cause

.

My colleagues conclude that these cases are not helpful because our primary concern there was different from our

concern here. T hey claim that our concern in prior cases was whether the district court adequately ensured that the defendants’ decisions to proceed pro se were knowing and voluntary. 53 The Majority notes that here, “despite his . . . misgivings,” Senke did not proceed p ro se, but rather decided to go to trial with Comerford. 54 While it is true that we were concerned with the district courts’ failures to appropriat ely inquire into defendants’ decisions to proceed pro se in Welty

and McMahon , it does not follow that we are therefore at liberty to ignore the clear conclusion from th o se cases . Those cases stand for the proposition that a n inquiry into prejudice is not appropriate in circumstances analogous to the

circumstances here.

Moreover, in disregarding the teaching of our prior cases, my colleagues ignore the fact that an appropriate inquiry

here would almost certainly have forced Senke to either waive his right to counsel and proceed pro se or proceed to trial represented by Comerford. Of course, the constitutional viability of the latter option turns on the extent to which the relationship between Senke and Comerford had deteriorated and whether any conflict was irreconcilable. Given Senke’s

53 See Maj. Op. at 17 & n. 38

. 54 Id . at 2 2

.17 representation that Comerford found the disco very here “to [ o ] disgusting” to review, that is not at all unlikely. However,

Senke’s case never advanced to the point where the nature of the conflict with defense counsel was explored. That is the primary distinction between this case and our prior cases

. However, it is a distinction without a difference given the district court’s failure to ascertain anything further about the conflict Senke had with Comerford. Accordingly, the remedy

for that abuse of discretion should be a remand to allow the

district court to determine if the conflict was irreconcilable. If it was, a new trial with substit ut e counsel is required.

Other circuit courts of appeals agree that a showing of prejudice is not required for relief where a district court erroneously fails to substitute counsel. For example, the Court of Appeals for the Ninth Circuit recently concluded : “[w]here a criminal defendant has, with legitimate reason, completely

lost trust in his attorney, and the trial court refuses to remove the attorney, the defend ant is constructively denied counsel.” 55 Under these circumstances, “[a] defendant need not show prejudice.” 56 Similarly, i n United States v. Jennings

, 57 the Court of Appeals for t he Sixth Circuit concluded that , based on the appellate record, it was “unab le to determine whether the district court discharged its responsibility of ascertaining the reasons underlying the defendant ’ s dissatisfaction with [appointed] counsel.” 58 Accordingly, the court remanded “for the purpose of allowing the district court to personally inquire

from each defendant his reasons for dissatisfaction with

55 Velazquez , 855 F.3d at 1033

– 34.

56 Id

. at 1034.

57 945 F.2d 129 (6th Cir. 1991)

. 58 Id . at 132

.18 counsel.” 59 The panel instructed the district court that if, on remand, it found “good cause” to substitute counsel, “each [defendant] would be entitled to new appointed counsel fo r re

trial,” without a showing that the appointed attorneys who represented the defendants at trial were ineffective. 60 We
should do the same here.

IV.

W e have consistently held that “the district court must engage in at least some inquiry as to the reason for the

defendant ’ s dissatisfaction with his existing attorney.” 61 “[E]ven when the trial judge strongly suspects that the defendant’s requests are disingenuous and designed solely to manipulate the judicial process and to delay the trial” or where the record reveals “overwhelming evidence of [ the

defendant’s ] guilt

, ” a court cannot give short shrift to this inquiry. 62

59 Id

. 60 Id

. Additionally, i n United States v. Collado

- Rivera

, the

Sixth Circuit concluded that the “ district court abused its discretion by summarily denying [a] post

- trial motion for new

counsel. ” 759 F. App ’ x 455, 467 (6th Cir. 2019) . It held “[t] he appropriate remedy is to remand for a hearing on the issue whether, at the time of sentencing, there was good cause for

substitution of counsel. ” Id . On remand, “[i] f the district court

determine [d] that [the defendant] had good cause for substitution of counsel, ” the court held that the defendant

“should be re

- sentenced ” with new counsel

. Id

. 61 Diaz , 951 F.3d at 154

. 62 Welty , 674 F.2d at 186 , 187

.19 We reaffirmed in Diaz that the inquiry is designed to determine whether good cause, i.e . “ a conflict of interest, a complete breakdown in communication, or an irreconcilable

conflict

, ” 63 exists between a defendant and his or her attorney

. If it does, the defendant is entitled t o new counsel. And where a court fails to perform such an inquiry, remand is required. 64

In Martel , the Supreme Court determined that where a district court abuses its discretion in failing to inquire into a defendant’s complaints about counsel, (as my colleagues

realize the d istrict c ourt did here)

, the appropriate remedy is to
remand to the district court for a hearing to determine whether

substitution was warranted

. The Court put it plainly: If a district court “abuse[s] its discretion in denying [a defendant’s] substitution motion without inquiry[,] [t]he way to cure that error [is] to remand to the d istrict c ourt to decide whether substitution was appropriate at th e time of [the defendant’s] letter” requesting substitution. 65 The focus of the inquiry is not

on finding any deficiencies in the lawyer’s performance after

the defendant file s the substitution motion , but rather on the

nature of the defendant’s relationsh ip with the appointed lawyer when the substitution motion i s filed

. 66 In describing

63 Diaz , 951 F.3d at 154

. 64 See Martel , 565 U.S. at 666 n.4

. 65 Id

. 66 T he Martel Court can be read to have rejected the functional equivalent of a prejudice standard , too

. T he government

conten ded that remand was inappropriate because “even if the
attorney

- client relationship ha[d] broken down, ” Clair’s
attorney “ ha[d] the required qualifications and [wa]s ‘act[ing]

as an advocate.’” Id . at 661. But the C ourt rejected that argument. It concluded th at the appropriateness of substitution20 the appropriate standard, the Court cited to our decision in Welty , and to Second and Ninth Circuits’ decisions in United

States v. Prime

, 67 United States v. Doe

, 68 none of which

discussed

– much less required

– a showing of prejudice on the

substitution issue

. 69

In Prime , a panel of the Court of Appeals for the Ninth Circuit described the appropriate three

- part inquiry to review a

district court’s denial of a motion to substitute counsel: “1) the timeliness of the motion; 2) the adequacy of the district court’s inquiry into the defendant’s complaint; and 3) whether the asserted conflict was so great as to result in a complete

breakdown in communication and a co nsequent inability to present a defense.” 70 Similarly, in Doe , a panel of the Court of Appeals for the Second Circuit described that the appropriate inquiry focused on: “(1) whether [the] defendant made a timely motion requesting new counsel; (2) whether t he trial court

did not turn on whether the attorney had been “acting as an

advocate

. ” Id . at 663.

67 431 F.3d 1147, 1154 (9 th Cir. 2005)

. 68 272 F.3d 116, 122

– 123 (2 d Cir. 2001)

. 69 Martel , 565 U.S. at 663. Of course, we recognize that Martel was a capital case and the question addressed by the C ourt was whether, when evaluating motions to substitute counsel in capital cases, the same “interests of justice” standard applied

there as it did in non

- capital cases. Id . at 658. But because the Court concluded that the same standard applies to both capital

and non

- capital cases alike, id

., the analysis in Martel

– including the Court’s directive to remand to the district court for a hearing if the court abuses its discretion in d enying substitution without an appropriate inquiry

– applies with full

force here.

70 431 F.3d at 1155.21 adequately inquired into the matter; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense.” 71 Whether the defendant was prejudiced b y counsel’s performance is simply not part of the inquiry.

Additionally, i n Diaz , we considered whether the district court abused its discretion in failing to inquire into

Diaz’ s dissatisfaction with counsel . We never inquired into

whether counsel’s actions after Diaz requested new counsel prejudice d Diaz. Rather, as in Martel , the inquiry was focused

on Diaz’ s relationship with his attorney when he filed the

substitution motion . We only concluded that the court did not

abuse its discretion because “the District Court had good

reason to believe [Diaz’ s attorney] was communicating with

Diaz such that Diaz ’ s request was withdrawn or moot.” 72 If , as the M ajority concludes, a showing of prejudice were required, we would not have looked at Diaz’s relationship with his counsel, but rather evaluate d Kalinowski’s performance as

Diaz’ s attorney

. But we did not do so there

, and we should not

do so here.

In sum, because the d istrict c ourt abused its discretion when it failed to appropriately inquire into Senke’s

dissatisfaction with counsel and request for substitute counsel

, we must remand to the d istrict c ourt for a hearing to determine whether good cause existed to substitute counse l. If the d istrict

c ourt determines that good cause existed, then it must vacate Senke’s conviction and retry Senke with new appointed

counsel.

71 272 F.3d at 122 (internal quotations omitted).

72 Diaz , 951 F.3d at 155

.22 V.

Finally, although I completely agree with, and join,

Section III

. C

. of the Majority Opinion explaining why certain conditions of supervised release are overbroad, I w ant to take this opportunity to address the fact that some courts in our

Circuit continue to impose what can only be described as knee

jerk and overly broad restrictions on internet and computer use , despite our repeated admonitions to the contrary. I suspect that the persistence of such sentencing practices, despite our

consistent re versals and re mands reflects a lack of understanding of technology rather than stubborn resistance to our decisions. But whatever the reason, the kind of irrational,

draconian

, and unconstitutional restrictions on internet and computer usage that are demonstrated by some of t he terms of Senke’s supervised release must stop.

We all recognize that some defendants are capable of using computers and the internet to victimize others and that

reasonable restrictions must therefore be placed on such use in appropriate cases. Howe ver, as we have so often tried to explain, such restrictions must be applied in a thoughtful and tailored way based upon the facts of a given case and care must be taken not to allow the justification for imposing some restrictions to morph into an excuse for imposing broad

restrictions that impose on First Amendment liberties or

restrain a defendant’s freedom more than necessary.

As the Majority correctly recognizes, computer and “internet bans are draconian, particularly in a modern society,

where one c an hardly complete menial tasks without using a23 computer or the internet. ” 73 Thus, “blanket internet restrictions will rarely be tailored enough to pass constitutional muster.” 74

The d istrict c ourt’s ban on possessing and using “computers . . . [and] other electronic communications” devices would cover all computers, cell phones, and a broad range of other devices, from “gaming devices to fitness trackers to smart watches.” 75 On its face, this restriction is too broad. It would “prevent [Senke] from do ing everyday tasks, like preparing a résumé or calling a friend for a ride,” along with commonplace “tasks that have migrated to the internet, like shopping, or searching for jobs or housing,” even though “none of these activities puts the public at risk.” 76

Almost 15 years ago, in Voelker

, we noted that all new

cars then being produced contained at least one computer and that the order banning access to computers or the internet would have prevented the defendant from driving a car, using

an ATM or a tel ephone, to name but a few ramifications of an untailored ban on computers and the internet. 77 For better or worse, the presence of computers and the internet in everyday

life ha s grown exponentially since then. A subsequent online

article about auto shows was titled: “How cars have become

73 Maj. Op at 30 ( internal quotations omitted )

. See also United

States v. Voelk

er, 489 F.3d 139, 145 (3d Cir. 2007) (“The ubiquitous presence of the [I]nternet and the all

- encompassing nature of the information it contains are too obvious to require extensive citation or discussion.”).

74 Holena , 906 F.3d at 29 5

. 75 Id

. at 294.

76 Id. at 292, 294

. 77 489 F.3d at 148 n.8

.24 rolling computers

. ” 78 And that was four years ago. The caption of a relatively more recent article in the Wall Street Journal speaks volumes about the ubiquitous nature of computers:

“ Your Smartphone Is the Best Computer You Own .” 79 And yet, the kind of reflexive restrictions that were imposed on internet and computer usage here continues.

Although we have said it so often that it should not need repeating, I separately emphasize what my colleagues clearly and unambiguously hold in the Majority Opinion. S uch bans

must be tail ored and focused on the particular evil that a court

is concerned with. I n addition, they must not be worded so broadly as to give “ the probation office no guidance on the sorts of internet use that it should approve.” 80

For courts that continue to ins ist on ignoring the law of this Circuit and reflexively imposing unconstitutional and irrational restrictions that sweep too broadly and infringe First Amendment liberties, I can only respond by quoting our dearly

78 Steve Mertl, How cars have become rolling computers , The Globe and Mail (Mar. 5, 2016), https://www.theglobeandmail.com/globe

- drive/how

- cars

have

- become

- rolling

computers/article29008154/#:~:text=The%20average%20ca r %20today%20can,networked%20but%20sometimes%20oper ating%20independently

. 79 David Pierce, Your Smartphone Is the Best Computer You

Own , The Wall St. Journal (May 23, 2018), https://www.wsj.com/articles/your

- phone

- is

- the

- best

computer

- you

- ownso

- use

- it

- more

- 1 527084001

. 80 Holena , 906 F.3d at 293.25 departed colleague, Judge Joseph Weis. In Gregory v. Chehi

, 81 in explaining the origins of the doctrine of res judicata, Judge Weis recounted a statement by a confederate general who, after twice refusing a soldier’s request for a furlough, scribbled the following on the back of the soldier’s third request: “ I told you
twicest Godamnit know.” 82

I can only hope that this is the last time we will have to explain (yet again) the practical and constitutional demand that courts carefully and individually tailor restrictions on internet and computer use to prevent an associated evil. However, if

histor y is any teacher, Judge Weis’ ever so appropriate exhortation will probably be called to mind at some point yet again.

81 843 F.2d 111 (3d Cir. 1988)

. 82 Id. at 112

.